MR VINCENT ADE OWOLABI OMOJOLA -VS- UNION BANK OF NIGERIA PLC

THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

Before His Lordship:-

HON. JUSTICE E.D. E ISELE – JUDGE

DATE: 3^rd OCTOBER, 2018 – NICN/ABJ/157/2014

BETWEEN:

MR VINCENT ADE OWOLABI OMOJOLA – CLAIMANT

AND

UNION BANK OF NIGERIA PLC – DEFENDANT

REPRESENTATION: Claimant present , Defendant absent.

A.E. Ezetulugo for the Claimant .

Philip A. Jego. For the Defendant.

JUDGMENT

This suit was originally commenced at the High Court of the Federal Capital Territory, Abuja but was subsequently transferred to the National Industrial Court by Hon Justice F. A Ojo on the 30^th day of January, 2014. The Claimant’s claim as set out in the filed processes are as follows:

A Declaration that the summary dismissal of the Claimant by the Defendant vide a letter dated 19^th July, 2006 is wrongful, null, void and of no effect for being contrary to provision on Part II (Section 1) Article 4 (iv) (c) of the main collective agreement between “The Nigeria Employers” Association of Banks, Insurance and Allied Institutions (NEABIAI) AND “The Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI)” 2005.
An Order setting aside the purported dismissal of the Claimant by the Defendant vide a letter dated 19^th July, 2006.
A Declaration that the Claimant is still in the employment of the Defendant.
A mandatory order of Court directing the Defendant to reinstate the Claimant to his status as Officer 1 and pay him all his entitlements/ and promotions which have accrued to him from the date of the purported summary dismissal.
An Order compelling the Defendant to compute and pay to the Claimant the salaries, entitlements and allowances which may have become due to the Claimant from the date of his purported dismissal until the date of his reinstatement.

OR IN THE ALTERNATIVE

An Order compelling the Defendant to properly retire the Claimant and to pay to the Claimant his entitlement calculated as follows:
Three months’ salary in lieu of notice ₦309,854.06.
Four months’ salary per year for 23 years ₦9,502,191.48.

iii. Gratuity – 375% of ₦1,239,416.23 = ₦4,647,810.86.

Total entitlement = ₦14,459,856.40.

And his pension allowance at the rate of ₦23,755.48 per month from the date of retirement till the death of the Claimant.

An Order compelling the Defendant to release to the Claimant all the shares certificates and other documents that are in the Defendant’s custody.
General damages for breach of contract.

THE CASE OF THE CLAIMANT

In the Statement of Claim, the Claimant stated that he was an employee of the Defendant in Abuja up till 19^th of July, 2006 when he was wrongfully dismissed from service. According to the Claimant he had worked with the Defendant for 23 years without getting a single query and that as a result of his track record, he was promoted in January, 2002 to Officer 1, Finance services department with a basic salary on ₦177,792.00. The Claimant also stated that he had worked in various capacities at different branches and under distinguished senior management staff who could speak volumes of his character. According to the Claimant, he had worked at the Staff Training Centre for 4 years, Union Bank Apapa Branch for 6 years (Three of those years as a Cashier) and Finance Services for 11 years (Two of these years as Head Office Cashier).

The Claimant stated that he had a few years to retire from service when he was served with a letter of suspension in Exhibit A1 dated 1^st March, 2006 and that without being served any query or made to face any disciplinary panel to defend himself, he was summarily dismissed by Exhibit A2 on 19^th July, 2006 from service contrary to the main Collective Agreement governing the Claimant’s relationship with the employer. According to the Claimant, when inspectors from the Head office visited the Abuja Branch Area Office, the 3 officers who were implicated in inflation of specie bills were interviewed but the Claimant was not interviewed neither was he given any fair hearing. According to the Claimant, he wrote Exhibit E an Appeal letter to the Defendant on the 26^th of July, 2006 requesting for fair hearing. But that the Defendant has refused, failed and neglected to give the Claimant fair hearing.

The Claimant averred that when all attempts to make the Defendant give the Claimant fair hearing failed, he instructed his Solicitors Messrs Akpama Ekwe and Co who wrote Exhibit G and G1 dated 16 September, 2018 to the Defendant requesting for reinstatement of the Claimant. According to the Claimant, he deposited the following Share Certificates with the Defendant for safekeeping

a)Union Bank of Nigeria Plc. Certificate No: 022206 – 2.
b)Intercontinental Breweries Certificate No: 13419.
c)UTC Nigeria Plc. Certificate No: 257533.
d)Costain (West Africa) Certificate No: 00524946.
e)African Paints Nigeria Plc. Certificate No: 00000591.
f)Union Bank of Nigeria Plc. Certificate No: 00421926.
g)Union Bank of Nigeria Plc. Certificate No: 1654245.
h)Tripple Gee Certificate No: 00032801.

The Claimant also stated that on 14^th August, 2008, he wrote Exhibit F to the Defendant for the release of his Shares Certificates and other documents deposited with the Defendant for safe keeping. And that the Defendant has failed to release the said certificates despite repeated demands. According to the Claimant, the Defendant did not follow the laid down procedure in dismissing the Claimant as he was not tried before a Court of Law for the criminal allegations. The Claimant further stated that the Defendant did not give him the contractual notice as prescribed by the Collective Agreement between the parties and that he was entitled to 3 months’ notice or 3 months’ salary in lieu of notice, 16 weeks total emoluments for each completed year of service and gratuity which is 375% of the Claimant’s total annual emolument if his services were no longer required by the Defendant. The Claimant added that he is entitled to a certain percentage of his annual emolument as Pension which would be paid monthly.

The Claimant then set out his entitlement upon his promotion to Officer 1 as at 2002. He further averred that by another Defendant’s letter, his basic salary was reviewed to ₦406,771.00. According to the Claimant in line with the above basic salary increment, his allowances were also increased in 2006 and that from this increase, his entitlement per month was ₦103,284.69 and his 3 months’ salary in lieu of notice as prescribed by Article 5 € of the Collective Agreement, 2005 should be ₦309,854.06. The Claimant stated that by Article 5 (d) (i) of the Collective Agreement 2005, in the event of redundancy, he would be paid 16 weeks total emolument for each completed year of service which translate to four months per year and that 4 months per year at the above monthly emolument of ₦103,284.69 will amount to ₦413,138.76 per year. According to the Claimant, for the 23 years he had served the Defendant his entitlement should be ₦413,138.76 × 23 years which will amount to ₦9,502,191.48. And that he was equally entitled to gratuity and pension and all his entitlements and emoluments which he proceeded to set out in detail.

THE CASE OF THE DEFENDANT

The Defendant in its Statement of Defence stated that the Claimant worked with it for 23 years as a regular banking employee until he was dismissed for gross misconduct on 19^th July, 2006. And that the basic salary of ₦177,792.00 alluded to the Claimant was his annual basic salary. According to the Defendant, the Claimant was dismissed for gross misconduct occasioned by his involvement in fraudulent activities within the Bank. That this case of fraud which took place among the staff of the Defendant’s cash centre, Abuja Main Branch was reported to Management which set up an Investigation Panel to investigate the matter and report to management.

The Defendant stated that those suspected in the fraudulent specie runs including the Claimant were suspended from work and subjected to a written interview type of investigation by the Panel and the Panel submitted an interim report dated 18^th November, 2005 written by one Mrs V. O. Nwokafor to the Deputy General Manager, Area Office, Abuja. According to the Defendant, in the process of the investigation, written questions were out to the Claimant and others to which they responded in writing. And that the Investigation Panel did a thorough job of which the outcome implicated the Cash Centre staff including the Claimant because his signature was found on some of the vouchers. The Defendant maintained that one E. S. Ahmed did allege that the Claimant was aware of these frauds and did partake in them. And that the commission of fraudulent practices of inflation of specie bills is punishable with summary dismissal as provided for in the PROCEDURAL AND MAIN COLLECTIVE AGREEMENT between the Nigerian Employers Association of Banks, Insurance and Allied Institution and the Association of Senior Staff of Banks, Insurance and Financial Institution.

The Defendant further stated that the Claimant’s summary dismissal because of the overwhelming evidence against him is inconsistent with the main Collective Agreement regulating the relationship between the Claimant’s Association and the Defendant. According to the Defendant, 45 written questions were put to the Claimant in exhibit DA in the course of the investigation and he gave written answers to them and in one of his responses on 29^th December 2005 he stated that “We function effectively without a Manager because we work as a team and we manage our self and cooperate . . .”

The Defendant averred that the Claimant participated and signed off some of the specie runs expenses breakdown knowing fully well that they were either inflated or that combined runs that attract a single charge were treated as separate runs thereby leading to separate charges to each branch instead.

The Defendant also stated that the termination was based on the conditions of service encapsulated in the Collective Agreement particularly Article 4 (iv) (a) (ix) and that the Claimant was given fair hearing. According to the Defendant, the Claimant’s letter of Appeal was in substance, an Appeal to revisit his fate regarding his appointment and not a demand for fair hearing allegedly denied him. And that the Defendant was unable to process for the release of the Claimant’s Shares Certificate because the Claimant signed a Bank Transfer authorising the bank to use his Shares to offset his indebtedness to the bank as the Shares were acquired through loans advanced from the Defendant, and also because the Claimant had not actually applied for the release of the Certificates.

CLAIMANT’S REPLY TO THE DEFENDANT’S STATEMENT OF DEFENCE

The Claimant filed a reply to the Statement of Defence. In the Reply, the Claimant maintained that he was never interviewed by the Investigation Panel and neither was he subjected to a “written interview” as alleged by the Defendant. And that on the 10^th of December, 20015, the Claimants’ field control manager invited him to the office and directed him to answer the written questions put to him. According to the Claimant this meeting was a routine one involving all cash centre staff and that when all those implicated in the fraud were suspended, he was not. He further stated that all specie runs breakdown expenses and voucher signed by him were genuine and in line with the bank’s standard.

The Claimant maintained that all his actions in the cash centre were authorised by the Bank’s management. And that he did not sign any specie runs expenses voucher knowing fully well that they were either inflated or that combined runs should attract a single charge were treated as separate runs thereby leading to separate charges to each branch. He further maintained that he signed each specie runs expenses with the approval of the Principal Manager and Cash Coordinator, and that the Investigation Panel did not confront him with any alleged findings.

The Claimant went on to state that due to the nature of the vehicles and limited staff strength in the department, the department worked out a way of meeting its cash delivery requirement which was approved by the management. The Claimant averred that it is against the bank’s regulation to carry more than 24 million naira in one trip and due to the poor state of the Cash Centre vehicles which cannot make two trips out of Abuja in one day, the Cash Centre devised a way of sending out two different trips using two different bullion vans and their complement of staff and policemen, whenever there is a demand for ₦50,000,000 by a particular Branch. According to the Claimant, these trips whenever made outside cannot be treated as a single trip and that the Cash Centre usually sends out Eight Policemen, each trip having Four Policemen who are paid the double fee of ₦21,000 instead of ₦10,000 if they stay beyond 6 p.m.

The Claimant maintained that all these trips were approved and signed by the Management through the Cash Coordinator and Principal Manager who were never queried for giving approval. He also stated that the issue of fuel are handled by the drivers who are given money approved by the Management.

The Claimant maintained that on 14^th August, 2008 he applied to the Defendant for his Share Certificate and the said letter was received by the Defendant on the 15^th August, 2008.

THE DEFENDANT’S FINAL WRITTEN ADDRESS

The Defendant filed its final written address on the 29^th of June, 2017 after the Court granted its prayer for extension of time to do so. In the address, the following issues were formulated for determination:

Whether the Defendant has the right to dismiss the Claimant from employment?
Whether the Claimant has proved its case upon the preponderance of evidence to entitle him to the grant of his claims?

In the arguments on issue one, Counsel stated that even if no wrong was committed by the employee, the master/employer has the right ab initio to terminate the employee’s employment for any reason, be it good or bad or just his intuition. Counsel then defined misconduct as held in the case of AZENABOR V. BAYERO UNIVERSITY KANO (2009) 17 NWLR (PT. 1169) CA 96 @ 99 page 102 ration 6 stating that the Defendant dismissed the Claimant for an act considered a misconduct on the Claimant’s part. Counsel submitted that this was one of the grounds for summary dismissal provided for in the main Collective Agreement particularly Article 4 (iv) (a) (i & ix) of the Part II Section 1. And that Article 4 (iv) (c) of the agreement was strictly adhered to by the Defendant in exercising its right to determine the Claimant’s employment with them after the exercise of due care and diligence.

Counsel further stated that one of the key ingredients in a master – servant/employer – employee relationship is fiduciary and that where there is breach of trust by the employer, the employer becomes sceptical towards maintaining such relationship and the employer would prefer to exercise his right to dismiss/terminate the employee’s employment. Counsel then submitted that it is settled that it is an unequivocal right of the Defendant to dismiss the Claimant and that it was not done in an arbitrary manner but according to the provisions of the Collective Agreement that governed the relations between Parties.

On issue two, Counsel submitted that the law is settled that in civil cases, the onus of proof lies on him who will fail if no evidence is laid in support of the claim before the Court, citing Section 133 (1) and (2) of the Evidence Act 2011. Counsel then contended that the Claimant has not shown cause as to why he should be granted his claim. According to Counsel, the Claimant pleaded the main Collective Agreement between the Nigeria Employers Association of Banks, Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) 2005 as the regulation that governs his employment with the Defendant and laid heavy reliance on Part II Section 1 Article 4 (iv) (c) of the Agreement. Counsel then stated that assuming but without conceding that the Agreement was or is indeed binding on parties, then the Defendant observed the dismissal procedure(s) prescribed in it, because by the Investigation Panel’s interview sheet questions were posed to the Claimant to which he responded accordingly and signed against each response.

Counsel further submitted that the Collective Agreement is not tantamount to a contract of service citing the case of OSOH V. UNITY BANK PLC (2013) 9 NWLR (PT 1358) 1 SC @ 8 ratio 4. Counsel then stated that from the foregoing, it is clear that the Collective Agreement is not binding on the Defendant demanding obligation observance. Counsel submitted that it is a general rule that parties are bound by written agreement between themselves and parole evidence cannot alter its terms. But that there was no written agreement between the parties as to the terms of the employment neither was there a letter of employment that incorporated the said Collective Agreement. Counsel stated that this means that there is nothing for the Claimant to stand on because the Claimant has not placed before the Court the terms of his contract of employment with the Defendant.

Counsel concluded by submitting that the Claimant has no case against the Defendant as there was no contract of service in the first place to warrant the grant of his claims.

CLAIMANT’S FINAL WRITTEN ADDRESS.

The Claimant filed his final written address on 6^th October, 2017 formulating three issues for determination:

Whether the dismissal of the Claimant was not wrongful?
Whether the Claimant is entitled to his salaries and allowances from the time of the purported dismissal until his appointment is properly determined.
Whether the Claimant is not entitled to the release of his Shares Certificates.

In the arguments on issue one, Counsel for the Claimant submitted that the dismissal of the Claimant was wrongful and that the Defendant did not follow the provision of the Collective Agreement in terminating the employment of the Claimant. According to Counsel, the phrase “Proven cases of” as used in Article 4 (iv) Part II Section 1 of the Collective Agreement puts a burden on the Defendant to prove the purported case of gross misconduct.

Counsel stated that the Defendant was unable to establish the case of gross misconduct against the Claimant and so cannot claim to have judicially followed the provisions of Part II Section 1 Article 4 (iv) of the Collective Agreement. Counsel then urged the Court to have a look at the pleadings of parties in order to determine what constitutes the service contract governing the relationship of the parties. Counsel also set out paragraphs 8 to 12 of the Statement of Claim and paragraphs 12 to 14 of the Statement of Defence stating that issues have been joined on two things viz:

The termination of the Claimant’s appointment was on suspicion of committing fraudulent activities
Both parties agreed that their relationship was governed by the procedural and main Collective Agreement between the Nigerian Employers Association of Banks, Insurance and Allied Institutions and the Association of Senior Staff of Banks, Insurance and Financial Institutions.

While relying on the decision in the case of ANAJA V. UBA PLC (2011) 15 NWLR (PT 1290) 377 at 393 Counsel maintained that the case at hand is a typical case of both parties accepting the Collective Agreement to form part of the terms of employment in their relationship. Counsel submitted that the letter of suspension clearly provided that the Claimant’s “various emoluments will henceforth be in line with the current Senior Staff Collective Agreement as it affects staff on suspension”. According to Counsel, the main Collective Agreement is the contract agreement governing the employment relationship of the parties and that because of the termination of the Claimant’s employment did not follow the agreement of the parties, then it was wrongful.

Counsel urged the Court to discountenance the argument of the Defendant on its issue 2 because the Defendant has admitted in its pleadings that the parties relationship was governed by the Collective Agreement. And that the case of OSOH V. UNITY BANK PLC (Supra) cited by the Defendant provided on exception to the general rule. Counsel further stated that the allegation of the Defendant in paragraphs 6 and 12 of the Statement of Defence must be proved beyond reasonable doubt as its required by law. And that only a Court of competent jurisdiction can try the Claimant before any disciplinary action can be commenced against him. The case of CADBURY NIGERIA PLC V OLUBUNMI O. ONI (2012) LPELR 19821 (CA) 33 – 34 was cited by Counsel who maintained that the dismissal of the Claimant was wrong and urged the Court to set aside the dismissal.

Counsel further stated that the evidence before the Court shows that the Claimant was not given fair hearing.

On issue two, Counsel stated that the allegation against the Claimant in this case is criminal in nature and the standard of proof is beyond reasonable doubt and that until that is done, the burden of proof cannot shift from the Defendant. Counsel then proceeded to set out some averments which he submitted that the Defendant did not contradict. According to Counsel, the only document in the Defendant’s proof of evidence that said something negative about the Claimant is the personal opinion of Mr C. O Ugwuoke, the field control manager who wrote the Investigation report tendered by the Defendant. Counsel stated that the report is not supported by evidence to show the Defendant ever challenged the arrangement. Counsel further maintained that in view of the Investigation by a Panel from Lagos and the Police, a written interview between the Claimant and his boss in the office cannot amount to fair hearing because the Claimant was not brought face to face with his accusers and their witnesses as provided by law.

Counsel submitted that the Claimant in his written interview had told the Defendant that he was not aware of any fraud committed by specie officers and that the Defendant did not produce any evidence to the contrary. Counsel maintained that the Defendant has failed to prove the allegation of “inflation of specie bills and combined trips treated as single runs” against the Claimant.

On the third issue, Counsel maintained that the Claimant had proved the facts pleaded in paragraphs 20 to 35 of the Statement of Claim and that the Defendant did not deny or contradict the above averments which mean the Defendant is deemed to have admitted same. Counsel then urged the Court to accept the unchallenged, uncontradicted and unshaken evidence of the Claimant as the correct version of what was expected to be proved and hold that the Claimant is entitled to the sum claimed by him.

On the fourth issue, Counsel submitted that the Claimant is entitled to the release of his shares certificate because the Defendant contradicted itself in its pleadings, lied on oath and tried to blackmail and defame the character of the Claimant. Counsel then urged the Court to hold that the Claimant is entitled to the release of his Shares Certificates and to discountenanced the argument of the Defendant on all the issues and to award judgment in favour of the Claimant.

THE DEFENDANT’S REPLY TO THE CLAIMANT’S FINAL WRITTEN ADDRESS

The Defendant filed a reply to the Claimant’s final written address. In it Counsel maintained that despite the Claimant’s argument on its issue one, the Defendant still holds its position that it is not bound by the said Collective Agreement. That it complied with the said rules of the Collective Agreement in view of Company policy on the side of abundance.

Counsel stated that the Claimant was given fair hearing as he was heard through his various responses to the various questions asked of him in writing. Counsel then submitted that the Court cannot be called upon to review or sit on appeal on the decision of the Panel because the Panel was duly constituted and performed its duties as required. Counsel also stated that since the Claimant did not lead evidence to show that the Defendant impounded the Shares Certificates, then his assertion as to his entitlement of the release of same is faulty.

Counsel further submitted that it is general practice that before the collateral/security donated can be returned to the real owner, the facility has to be liquidated. According to Counsel, the Bank is entitled to place a lien on the Shares Certificate until the loan is liquidated.

Counsel maintained that despite the Claimant’s argument that the Defendant did not tender the share transfer form, that there was no necessity for the Defendant to produce same in Court. According to Counsel, the Defendant was also never served with a Notice to produce the said form and so the Defendant is excluded from liability leaving the Defendant with the duty to establish evidence in each head of claim which will entitle him to the relief. Counsel stated that the Claimant did not in any way object, deny, traverse or claim otherwise with respect to the said assertion of the Defendant in regards to the Transfer form (as in paragraph 23 of its Statement of defence) and as such the evidence remains admitted.

Counsel then urged the Court to exercise its discretion in favour of the Defendant and dismiss the Claimant’s claim.

COURT’S FINDING OF FACT, EVALUATION OF EVIDENCE AND DECISION

In the course of writing this judgment the following facts have become established:

The Claimant worked with the Defendant for 23 years. By Exhibit A2 dated 19^th July, 2006 the Claimant was dismissed by the Claimant.
Before the Claimant was dismissed he was placed on suspension by virtue of Exhibit A1 dated 1^st March, 2006. The letter of suspension reads

“This letter serves to inform you that you are being placed on suspension with effect from 2/3/2006 till further notice.

This has become necessary in view of your involvement in the inflation of specie bills and combined trips treated as single runs and debited to branches.

You are to report daily to sign the attendance register during which period you are not expected to walk around the various departments.

You various emoluments will henceforth be in line with the Senior Staff Collective Agreements as it affects staff on suspension.

Meanwhile, please acknowledge receipt on the copy of this letter.

Yours sincerely . . .”

Exhibit A2 the letter of dismissal which came 4 months and 18 days later on 19^th of July, 2006 reads:

“Headed: DISMISSAL FROM SERVICE.

You are hereby advised of your dismissal from the Bank’s service for gross misconduct at Abuja cash centre with effect from 21^st June, 2006.

You are required to submit to the undersigned all Bank’s property in your possession including your identity card.

Yours sincerely . . .”

The letter of suspension made clear reference and placed reliance on the Senior Staff Collective Agreement. The same reliance was placed on the procedural and main Collective Agreement at paragraphs 13, 16, 19 of the Statement of Defence.
The letter of dismissal in Exhibit A2 was with a retrospective effect, that is, it was dated on the 19^th of July, 2006 with effect from 21^st June, 2006.
The Claimant was accused by the Defendant to be involved in committing acts of fraud/and or concealment of fraud in case of signing of specie runs expenses breakdown knowing that they were inflated, leading to separate charges on different branches of the Defendant. This led to his suspension and subsequent dismissal.
The Claimant maintained in his case that he was not interviewed by Inspectors of the Defendant who came from Lagos to investigate the matter. He also maintained that he was not given fair hearing by the Defendant before he was dismissed.
Exhibit DA tendered through DW1 showed the Claimant was interviewed/questions extensively in the 12 pages of Exhibit DA on the matter of: FRAUDULENT SPECIE EXPENSES AT ABUJA CASH CENTRE WITHDRAWN AT ABUJA MAIN BRANCH.
The Claimant by Exhibit F dated 14^th August, 2006 applied to the Defendant to collect his Shares certificate and his other documents kept in the custody of Defendant for safe keeping. He averred at paragraph 17 of his Statement of Claim (facts) and listed 9 documents and their details.
The Defendant did not deny being in possession of the Shares Certificates.
The Defendant did not tender the signed Bank transfer in which it averred that paragraph 23 of the Statement of Defence that the Claimant used to authorize it to use his Shares to upset sic (offset) his indebtedness to Bank as the Defendant had averred the shares were acquired through loans advanced through the Defendant.
The Defendant did not plead or tender the particulars of the Bank loans advanced to the Claimant.
The Defendant gave another reason why it was unable to process the Claimant’s application for the release of the Claimant’s Shares Certificates at paragraph 25 of the Statement of Defence. That the Claimant had not bothered to do the application and had not actually applied for the Shares Certificate. This in a Statement of Defence dated 10^th May, 2015 whereas Exhibit F through which the Claimant applied earlier was dated 14^th August, 2006.
The Claimant was not tried and convicted of a criminal offence arising out of the incidents that led to his suspension by the Defendant and his subsequent dismissal.

COURT’S DECISION

In the first head of claim for a declaration that the summary dismissal of the Claimant by the Defendant dated 19^th July, 2006 is wrongful, null and void and contrary to the provision of Part II (Section 1) Article 4 (iv) (c) of the main Collective Agreement e.t.c. Here the Claimant had maintained that while the Defendant had a right to hire and fire, the Defendant did not follow laid down procedure in dismissing the Claimant as he was not tried in a Court of law for the criminal allegations, this, at paragraph 20 of the Statement of Claim (facts).

The Defendant in the treatment of its first issue whether it had the right to dismiss the Claimant from its employment insisted that the provision in Article 4 (iv) (c) of the Collective Agreement was strictly adhered to as it was the precondition for the Defendant to exercise its right to determine the Claimant’s employment with them after the exercise of due care and diligence citing GEIDAM V. NEPA (2001) 2 NWLR (PT 696) CA 46 @ 57 para B and 55 – 56 paras G – B.

Now, Article 4 of the Exhibit B the procedural and main Collective Agreement is on Disciplinary procedure (iv) is on summary dismissal. (a) provides: An Employee may be summarily dismissed for certain acts of gross misconduct such as include proven cases of . . .(c) provides: Before either summary dismissal or warning letter is effected the employee shall be given a written query and afforded the opportunity to defend himself except where the employee has absconded.

In this case, the evidence has shown that the Claimant had not absconded before he was dismissed. Indeed, he had averred that he had never been queried in 23 years of service with the Defendant at paragraph 3 of the Statement of Claim (facts) which the Defendant admitted in paragraph 3 of the Statement of Defence as true until his dismissal for gross misconduct.

It is also the case of the Claimant that he was not queried and he was not made to face any Disciplinary Panel at paragraph 9 of the claim. The Defendant denied this generally at paragraph 2 of the Statement of Defence and specifically at paragraph 14 of the Statement of Defence stating it was consistent with Exhibit B the main Collective Agreement as echoed in paragraph 15 of the DW1’s Witness Statement on Oath. The Defendant through DW1 at paragraph 16 of the Witness Statement on Oath averred that the Claimant was allowed to defend himself before a special Panel constituted by the Bank to investigate the fraud involving the Claimant and other staff and he was subsequently dismissed because of the overwhelming evidence against him.

As to whether an employer must first initiate criminal prosecution before dismissing an employee for alleged misconduct, the Supreme Court in FRANCIS ARINZE V FIRST BANK OF NIGERIA PLC (2004) 12 NWLR (PT 888) 663 held per Onu JSC at page 76 that since the appellant had been confronted with the accusations and he was given opportunity to explain and the explanation showed that he had no satisfactory answer, it was not necessary for the Respondent to initiate criminal prosecution before taking disciplinary measures against him summarily dismissing him where the Appellant’s misconduct undermine the relationship of confidence which should exist between the Appellant and the employer see also OLARENWAJU V AFRIBANK NIG PLC (2001) 7 SCNJ 493.

I hold that the above decision of the apex Court is binding on the case at hand before the Court here, as the facts of the case are quite similar.

Even though the Claimant was not given queries or a query and no letters of warning before his summary dismissal were issued him, and even though this may make or had made the dismissal wrongful on the procedure taken by the Defendant to dismiss him, it is sufficient to say that the Claimant was given an opportunity in Exhibit DA to respond to the allegations that led to his suspension and subsequent dismissal. In P.C.N UZONDU V. UNION BANK (2009) 5 NWLR (PT 1133) 1 the Court of Appeal per Ogunwumiju JCA (as he was) held on the definition of misconduct and whether fair hearing is required had this to say:

“In NWOBOSI V. ACB (1995) 6 NWLR (PT 404) 658; SHUAIBU V NIGERIA ARAB BANK (1998) 4 SCNJ 109; the Courts have defined wilful misconduct to be any act prejudicial to the interest of the master or outside the scope of the duties of the servant. No fair hearing is required see ARINZE V FIRST BANK (NIG) LTD (Supra). The only relevant consideration is whether or not the contract of service was breached by the employer”

Now having found as a fact that the Claimant’s letter of dismissal was backdated to about 30 days from 19^th July, 2006 with effect from 21^st June, 2006. On whether an employer can be dismissed retrospectively the Court of Appeal in JOSEPH HEMEN ABENGA V. BENUE STATE JUDICIAL SERVICE COMMISSION & ANOR (2006) 14 NWLR (PT 1000) 610 had per R.D Mohammed JCA:

“It is now settled law that an employer cannot dismiss an employee with retrospective effect. A decision by an employer to dismiss an employee takes effect from the date of the decision to dismiss or a later date.”

See BAKARE V. L.S.C.S.C (1992) 8 NWLR (PT 262) 641Where the Supreme Court stated at page 676 that:

“A decision to dismiss normally takes effect from the date of the decision or a later date” See also BOSTON DEEP SEA FISHING & ICE CO. V ANSELL (18886 – 1890) ALL ER 65. “In the present, given the preponderance of the findings of facts and the Statement of the law it is hereby declared that the suspension of the Claimant was wrongful having been done to take effect retrospectively”.

Having made the above findings and holding regarding the first head of claim. And having also the 2^nd head of claim praying for setting aside the letter of dismissal, and the 3^rd head of claim for a declaration that the Claimant is still in the employment and the 4^th head of claim for an order directing the reinstatement of the Claimant.

On the proper order to make when a dismissal is found to be wrongfully done, the appropriate order for the Court in a master servant situation such as this, that is the measure of damages the Claimant would have been entitled to, would be the salaries for the length of time during which notice of the termination would have been given in accordance with the contract. The claim for setting aside must therefore fail. See UNION BANK OF NIGERIA PLC V. MR SAMUEL CHINYERE (2010) 10 NWLR (PT 1203) 453 where flowing from the decision regarding the 2^nd head of claim, the claim on the 3^rd head of claim is equally refused. On this, as to whether a declaration that an employment subsists will be made or whether an order of reinstatement will be made, the Supreme Court in UNION BANK OF NIGERIA V CHUKWUELO CHARLES OGBOH (1995) 2 NWLR (PT 380) 647 per Belgore held that:

“In cases (such as this) governed only by the agreement of the parties and not by statute removal by way of termination of appointment or dismissal will be in the form agreed, that is wrongful termination or dismissal will not be declared null and void. That the only remedy is a claim for damages and nothing more.”

The apex Court held further per Iguh JSC:

“That where there has been an unlawful termination of the Claimant’s contract of service, a declaration that the contract of service still subsists will rarely be made. This is in consequence of the general principles of the law that the Courts will not ordinarily grant specific performance of a contract of service unless special circumstances are established. See FRANCIS V. MUNICIPAL COUNCILLORS OF KUALA LUMPUR P.C (1962) 3 ALL E.R 633. The Plaintiff in appropriate cases of such unlawful dismissal or wrongful termination of employment is left to his remedy in damages as no servant may generally be imposed by the Court on an unwilling master even where the master’s behaviour is wrongful. See DAVIS V. FOREMAN (1894) 3 CH. 654 and KIRCHNER & CO. V GRUBAN (1909) 1 CH 4 B”.

From the above, I hold that the claim in the 4^th and 5^th heads of claim must fail.

Regarding the heads of claim sought in the alternative to claims 1 to 5. That is the claims in the 6^th head of claim seeking an order for proper retirement of the Claimant and payment of his entitlements totalling ₦14,459,856.40 and pension allowance at ₦23,755.48 per month. Having earlier cited the Supreme Court’s decision in UNION BANK OF NIGERIA V. CHUKWUELO CHARLES OGBO (Supra) that all the Claimant would be entitled to in damages). In this case the procedural and main Collective Agreement Exhibit B which the Defendant sought to rely on in the Statement of Defence provides at pages 13 and 14 on Termination after warning at paragraph (d) page 14 that:

“Any Employee whose services have been terminated under the provisions of this paragraph shall nevertheless be entitled to one month’s notice or salary in lieu. In addition to any other terminal benefit”

Now the Exhibit H is the Union Bank Handbook it provides at Chapter 28 on staff at page 13 of that Chapter on Disciplinary actions that:

“Warning letters issued under the provisions of the Collective Agreement should be precise and strictly factual, and should make reference to the relevant section of the Collective Agreement under which they are issued. The provisions of the Collective Agreement regarding giving the employee the opportunity of stating his case must be meticulously adhered to”.

I find and do hold that the above provision of the Staff Handbook incorporates the procedural and main Collective Agreement which both parties in their pleadings relied on. The contention of the Defendant to the contrary in its written address where reliance was placed on the case of OSOH V. UNITY BANK (2013) 9 NWLR (PT 1358) 1 SC with the greatest respect is neither here nor there. In the case ANAJA V. UBA (2011) 15 NWLR (PT 1270) 377 at 393 relied on by the Claimant it was held that a Collective Agreement on its own does not give an individual employee the right of action in respect of any breach of its terms unless it is accepted to form part of the terms of employment.

In this case the Claimant had not tendered his letter of appointment and any other document with clearer provisions regarding his terminal benefits, apart from the Collective Agreement in Exhibit B and the Handbook in Exhibit H. The provisions as best as I can see only aid the Court to make findings from the provisions I found from looking at the documents myself. The claims in head six are not hinged as due to the Claimant on any part of these 2 Exhibits B and H. The Claimant also did not state which clauses in the Exhibit B and H which gives him or entitles him to the claims in head 6 in the order he set them out either in his Statement of Claim (facts) or in his Witness Statement on Oath. The provision I cited out in Exhibit B provides for one month notice for terminated staff which I find the Claimant is entitled to must be treated as in order having declared his termination wrongful.

It is hereby ordered in the premises of the above reasoning that the Claimant be paid his one month salary in lieu of notice. I cannot make any other specific awards covering other terminal benefits he may be entitled to as the claims are not hinged on any other provisions in Exhibit B and H or in any other contractual document containing terms and conditions as in a letter of employment or any other ancillary document. As I find and hold that any reliance placed on Exhibit C headed new compensation package dated 3^rd November, 2008 would not avail the Claimant as he was already out of the Defendants employ two years earlier.

In the circumstances, I am only able to make and grant the order as prayed in the 7^th head of claim for a return of the Claimant’s Share Certificates with the Defendant as listed and expressed in paragraphs 17 and 18 of the Statement of Claim (facts). I make this order as I found and do hold that the Defendants having admitted it was in custody of the documents did not establish by any evidence or proofs that the Claimant was indebted to it either by way of loan or salary advance or any other means of indebtedness by which the said documents could have been held on to as a lien.

It is hereby ordered that the one month salary in lieu of notice be paid to the Claimant within 14 days of this judgment and the said Shares Certificates and other documents be returned to the Claimant within the same period of 14 days.

Judgment is entered accordingly.

There are no awards as to costs.

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HON. JUSTICE E. D. E. ISELE

JUDGE